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In a dramatic turn of events, the Supreme Court of India, at a middle-of-the-night hearing, refused to stop the Bharatiya Janata Party from taking oath on Thursday morning as the new government in Karnataka. Though it did direct the Attorney General of India, KK Venugopal, to produce the letter written by BJP Karnataka leader BS Yeddyurappa to the state’s governor, by the next hearing on Friday, May 19. The letter states the number of legislative assembly members supporting the BJP.

The hearing at the apex court started at close to 2 a.m., after Congress and Janata Dal (Secular) party representatives made a late night visit to the Supreme Court registrar seeking to file petitions against the decision of the Karnataka Governor Vajubhai Vala to invite the BJP to form government in the state.

The Congress and JD(S) have claimed the right to form government in Karnataka after the state elections failed to produce a winner. The BJP with 104 winning candidates is eight short of the desired 112. The Congress and JD(S) combine has 116 MLAs - of which 78 belong to the Congress, 37 to the JD(S) and one is an independent candidate.

Late on Wednesday evening, a full 24 hours after both contenders met with the state’s governor to make their case, Vala is said to have issued a letter to the BJP inviting it to form government. The letter stated the BJP could decide on the date and time of the swearing-in ceremony and had 15 days to prove its majority on the floor of the assembly. That’s seven more days than the BJP had reportedly asked for.

Soon after, the BJP announced that its leader BS Yeddyurappa would take oath as chief minister of the state on Thursday morning at 9am.

His Excellency the Governor of Karnataka has invited Sri @BSYBJP to form the government.

Aggrieved by this the Congress and JD(S) immediately filed petitions with the Supreme Court challenging the governor’s decision. Curiously, the governor’s letter was released to the public by a news agency and not by his office. The Congress and JD(S) claim to have received no communication from the governor or his office.

Just after midnight the Supreme Court decided to hear the petitions and a three-judge bench of Justices AK Sikri, SA Bobde and Ashok Bhushan convened the matter close to 2 a.m.

The Arguments

Congress party leader Abhishek Manu Singhvi argued on behalf of the two parties. Citing recent precedents when governors invited the largest group of parties and not the single largest party to form government, Singhvi said Vala had negated democracy. He also argued that giving the BJP 15 days to prove their majority is “adding insult to injury”.

“There is only one way in the world to convert a 104 to 111. And you get 15 days for that,” said Abhishek Manu Singhvi.

Attorney General of India KK Venugopal told the court that even if a BJP government were to take oath, that could be reversed by the court. He made the point that no urgency warranted the late-night hearing. And that if the court pleased it could defer the swearing-in ceremony. Venugopal was appearing for the Union of India.

Former Attorney General Mukul Rohatgi, appearing for some unnamed BJP MLAs, sought the dismissal of the petitions. He argued that while a governor’s actions can be judicially reviewed, there cannot be an injunction issued against them.

When the court showed little inclination to defer the swearing-in, Singhvi emphasised that he wasn’t seeking to injunct the governor from taking action, but asking that the consequences of that action be delayed.

The arguments continued till well after 5 a.m., after which the bench decided it would not defer the oath taking ceremony and government formation. It fixed Friday 10.30 a.m. as the next hearing for the case. It also sought to see the full extent of support claimed by the BJP in its letter submitted to the Karnataka Governor seeking to form government. Singhvi had argued that if the Congress-JD(S) combine had 116 MLAs, how could the BJP have claimed to have the 112 seats needed for government formation.

The failure to convince the apex court will serve as a set-back to the Congress-JD(S) combine and present them with the difficult task of retaining all their MLAs in the days to come. On Wednesday the leader of the Congress-JD(S) alliance, HD Kumaraswamy, alleged that the BJP had offered his MLAs Rs 100 crore to break ranks and back the saffron party.